Why Michael Brown’s robbery would be admissible at a federal criminal trial

August 18

As Jonathan recently noted, Ken White at Popehat has a post covering some of the ways in which Michael Brown’s robbery does and does not matter legally.  While White’s analysis is interesting, I think he is far too skeptical about whether the evidence would ultimately be admitted in federal civil rights prosecution.  In my view, the evidence almost surely would come in, along with any additional evidence about Michael Brown’s bad character (should such evidence exist).

White begins by accurately describing one of the key federal rules of evidence that would be in play: Federal Rule of Evidence 404(b), which allows “prior bad acts” (such as robberies) to be admitted into evidence to demonstrate “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”  White says that he thinks the strong-arm robbery — which Brown committed about 10 minutes before the shooting — “could conceivably relate to Brown’s state of mind.”  This seems like a very skeptical way of phrasing the matter.  A person who commits a robbery and then leaves the store — after shoving the proprietor — would quite likely expect that a 911 call went out to the police and that the police would be looking for him.  Then, when approached by the police, it would  be quite likely for that robber to be concerned that the police would be likely to arrest him.  All of that would quite clearly go to “motive” and “intent” and the like under Rule 404(b) and would therefore quite likely be relevant and admissible under Rule 404(b).

White seems to ultimately concede much of this, but then points to a separate federal rule of evidence — Rule 403 — which allows for the exclusion of even relevant evidence when it has a prejudicial effect. White explains that the prejudice would be the possibility that the jury might find for the defense because the robbery evidence would be “suggesting to the jury that Mike Brown had it coming, or was a violent person.”   This much is assuredly true.  But White then thinks that a judge would nonetheless probably allow the evidence to be admitted under a rather curious theory:  “Were Wilson [the police officer] a normal mortal, I’d give this a 50/50 chance of being admitted in evidence. Since he’s a cop, and he wants it to come in, and cops generally get special treatment, I’ll give it a 75% chance of getting in.”

There is no need to resort to a special-treatment-for-cops argument to conclude that the robbery evidence would quite probably come in.  Rule 403 itself contains a balancing test that strongly tips in favor of admitting relevant evidence.  The rule allows exclusion of relevant evidence only where its probative value “is substantially outweighed by the danger” of unfair prejudice.   Even granting that the robbery evidence has high prejudicial value, that would not be enough to defeat admission of evidence showing a clear motive for Brown to concerned about being detained by the police.  Evidence that is highly prejudicial and highly probative is admissible under Rule 403.  In light of the balancing test, it would be highly likely that the robbery evidence would come in because of the federal rules’ preference for admitting all relevant evidence.

White then goes on to discuss what he calls “people gleefully digging through Mike Brown’s life to find things to dirty him up” — specifically pictures posted on the web of Brown showing him flashing gang signs that purportedly show allegiance to the Bloods street gang.  White quite rightly reminds us that gang members no less than saints have a right to be free from excessive force by police.  But given that the topic of his post was the rules of evidence in criminal trials, White should acknowledge that evidence that Brown was gang member (if that is true) would likely be admissible in evidence in a criminal trial.  Federal Rule of Evidence 404(a)(2) provides a special rule for the benefit of criminal defendants (e.g., police officers charged in shootings) that allows them to introduce evidence of an alleged victim’s “pertinent trait” of character.    Thus, as one leading federal evidence treatise explains, this rule allows a defendant to introduce “evidence that an alleged assault victim was inclined toward violence.”  Mueller and Kirkpatrick, Evidence, section 4.11.

It is, of course, unfair to reach a conclusion about whether Brown was or was not a gang member and was or was not inclined towards violence based on the tidbits of evidence that have been discussed on the Web.  But it is perhaps equally unfair to be speculating about whether a police officer will be charged with a crime for the shooting when the investigation is still in its early stages.  For  me, the interesting legal point is whether Rule 404(a)(2) should be removed from the federal rules of evidence.  It is an anomaly that we broadly extend to criminal defendants an opportunity to introduce character evidence to disparage their victims.  As someone active in the crime victims’ rights movement, I have heard strong arguments made for removing that rule entirely — on grounds that it is unfair to victims, particularly in homicide cases where they are unable to respond to attack on their reputation.  Perhaps the Brown case (if prosecuted federally) will force a reexamination of the rule and its possible elimination.

One last way in which Michael Brown’s robbery might be relevant at a criminal trial is also worth discussing.  White notes that it is, at this early point in the case, unclear whether the shooting officer had heard about the robbery at the time he first approached Brown.  White then explains that if the officer had not heard about the robbery, then evidence of the robbery could not be relevant to his state of mind.  This point is true, as far as it goes. But it does raise the question of whether the propriety of the shooting is to be judged subjectively (i.e., based on what the officer knew) or purely objectively (i.e., based on the totality of the surrounding circumstances).  I haven’t had time to explore all of these surrounding issues.  But I did want to point to one curious aspect of Missouri law that I found poking around on Westlaw that others with more information about Missouri may be able to discuss more intelligently.

When I ran a Westlaw search for the Missouri statute currently covering deadly force by police officers, I found this statute (also up on the State website) Mo. Ann. Stat. § 563.046 (West), which provides:

A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only(1) When such is authorized under other sections of this chapter; or(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested(a) Has committed or attempted to commit a felony; or(b) Is attempting to escape by use of a deadly weapon; or(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.

This statute seems to be unconstitutional on its face, since it would appear to allow a police officer to use deadly force to effect an arrest for “a felony.”  And yet as White points out in his post, the Supreme Court in Tennessee v. Garner has clearly held that the an officer can use deadly force only if a fleeing felony suspect posed “a threat of serious physical harm, either to the officer or to others.”  I don’t understand how Missouri can have on its books a statute that seems to authorize deadly force to effect an arrest for a mere felony.  That would authorize deadly force to apprehend a fleeing burglar, for example, the very fact patterns that Garner concluded was a violation of the Fourth Amendment.  Perhaps I am misreading the currentness of this statute.  But it does seem odd that the statute (apparently passed in 1977) has never been updated to conform with the Supreme Court’s 1985 ruling.  This might give rise to some sort of “good faith” defense on the part of the arresting officer that he acted in compliance with state law — although that defense would difficult to maintain in light of the clarity of the Garner holding.

I should emphasize that the above analysis only pertain to federal evidence principles.  Missouri rules may be different.  And, as noted above, Rule 404(a)(2) only applies in criminal trials.  The principles in civil trials are different. But I think the bottom line is that, under existing federal evidence principles, the robbery and surrounding character issues concerning Michael Brown would be admissible if the police officer is charged criminally in federal court.  Whether such charges will ever be filed, however, remains highly speculative at this point, as we don’t have good information about all the circumstances surrounding the shooting.

Paul G. Cassell teaches criminal law, criminal procedure, and crime victims' rights at the S.J. Quinney College of Law at the University of Utah.
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Eugene Volokh · August 18